A brief look at complaints received by the NSW Ombudsman

 

In its last published annual report (2021-22) the NSW Ombudsman’s office received a total of 5,746 complaints concerning government departments/agencies including further education facilities, local health districts and icare.

Service NSW had the highest number of complaints (959), followed DCJ Housing (956), Land and Housing Corporation (374), Roads and Maritime (364) and Ministry of Health (100).

In addition the Ombudsman also received 2,405 actionable complaints about local government councils, including 2 complaints about county councils. 

With Clarence Valley Council being first in the Top 10 councils with the most finalised actionable complaints per 100,00 head of population (89) even though it tied for last place on that same chart for the actual number of finalised actionable complaints (46). Central Coast Council was the dubious Top 10 winner on the basis of actual number of finalised actionable complaints received which reached 158.

Actionable complaints about these 10 councils - Central Coast Council, Canterbury-Bankstown Council, Northern Beaches Council, Georges River Council, Sutherland Shire Council, Mid-Coast Council, Blacktown City Council, Lake Macquarie City Council, Clarence Valley Council, Inner West Council - represent 29% of all the local government actionable complaints the Ombudsman finalised in 2021-22.

The most frequently raised issues in actionable 

complaints about councils were: 

• standards of customer service; 
• complaint-handling processes; 
• council enforcement action; 
• charges and fees; and 
• merits/reasoning of council decisions when they are exercising their discretion in accordance with policy or in a statutory setting.

What that paragraph appears to be indicating that complaints about development applications and in Chamber decisions concerning development still feature prominently in the annual complaints profile as they have for at least the last two decades.

The Clarence Valley Independent was told by a Local Government NSW spokesperson that despite serving the same population, the state’s 128 councils recorded fewer than half the number of complaints made about the state government.

Some lessons never get learnt by NSW local government and this is but one recent example

 

IMAGE: Google Earth 2008

In what seems an appropriate response to a proposed retrospective development consent the NSW Office of Local Government and NSW Ombudsman have commenced a preliminary investigation into building works undertaken at 19 Gumnut Road, Yamba, a waterside residential property of approx. 651.70 sq metres, which according to Clarence Valley flood mapping is at risk of a degree of inundation even in a 1 in 5 year flood event and in a 1 in 100 year event water likely reach the top floor of the house.

A development application DA 2019/0439 was lodged on 14 August 2019, however subsequent construction did not follow the structural plans to which Clarence Valley Council had granted consent on 2 December 2019 apparently by delegated authority.

After a site inspection in February 2021 when build inconsistencies could not be ignored by council officers, the owners of 19 Gumnut Road were obliged to lodge DA2021/0153 and MOD2021/0016.

These documents show:

CONSTRUCTION OF NEW CARPORT AND AWNING ATTACHED TO EXISTING DWELLING

2 CONSTRUCTION OF [detached] RUMPUS ROOM AT REAR OF LOT

3 CONSTRUCTION OF DECK AT REAR OF LOT

4 NEW FENCE ALONG WESTERN BOUNDARY

* NOTE: POOL AND SURROUND TO BE APPROVED AS SEPARATE D.A

Additionally the documents described a retractable privacy screen and awning, rainwater tank and floating pontoon. The rainwater tank and retractable awning were constructed without Council approval and do not meet the development standards for exempt development (i.e. development that does not require Council approval) listed in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. The retractable privacy screen has not been constructed or installed and the floating pontoon has been removed from the application. Accordingly, this application only seeks approval for: 

• Proposed retractable privacy screen 

• Existing retractable awning (as-built) 

• Existing rainwater tank (as-built)

The 40 year-old house and additional structures now appear intended to cover around 85-90 per cent of the lot.

Apparently eager to oblige these particular local business owners, council staff formally recommended to Council in the Chamber that retrospective consent be given as well as consent for certain proposed construction and, predictably the 'all-development-is- good-but-over-development-is-better' brigade holding a majority on Clarence Valley Council also agreed to oblige the owners on 25 May 2021. 

Quite frankly, the article below does not do full justice to the level of non-compliance shown in photographs taken in 2020 and supplied to Clarence Valley Council by local residents. Nor is the mention it contains of the rumpus room/studio adequate to describe the aesthetically bereft, freestanding structure that was actually built.

Clarence Valley Independent, 2 June 2021:

Councillors were split four to three at the May 25 Clarence Valley Council (CVC) meeting, when they approved a raft of existing building works at a Gumnut Road property in Yamba, however, three councillors lodged a rescission motion after the meeting.

Nearby residents lodged objections (a total of nine submissions and a petition signed by 40 people) to the “as-built inconsistencies with the approved” development applications (DA) and other unapproved works, which council’s planning staff described as “minor” or “very minor”.

Some of the modifications and works approved were non-compliant with CVC’s development control plan (DCP).

Objectors have raised issues with Ombudsman NSW, regarding how CVC has managed processing the DAs and CVC’s alleged indifference to unapproved building works.

Ombudsman NSW is currently making “preliminary enquiries” into the matter.

Councillors Debrah Novak, Karen Toms and Greg Clancy lodged the rescission motion, which outlined six reasons:

Council did not undertake progress inspections during construction works for both DA 2019/0439 (now MOD 2021/0016) and DA 2021/0153);

Council has varied the residential DCP floodplain management controls in relation to the required floor level of 2.9m Australian height datum (AHD) for the studio, consequently, CVC’s DCP would need to be updated as this has set a precedent;

The applicant has not provided a survey completed by a registered surveyor as required … when the DA was lodged or prior to commencement of construction;

The applicant has not provided a valid structural engineer certification for the whole build of the studio … occupation is prohibited without a valid structural engineer’s certification;

No valid structural engineer’s certification has been submitted for the existing retaining wall, which is now the foundation for the large extended deck; and,

The applicant has enclosed a deck without obtaining prior approval from council. [my yellow highlighting]

Acting general manager Laura Black said the rescission motion would be tabled at the June 2021 CVC meeting; however, she said the rescission motion “bears no relation to the ombudsman’s enquiry, at the moment”.

“As we [CVC] understand it, the ombudsman has received a complaint from a ratepayer … and the [ombudsman has] made an enquiry [regarding] our communication with that ratepayer,” Ms Black said.

“We are unaware of the nature of the complaint and we’ve provided a response to the ombudsmen, including all of our correspondence with that particular ratepayer.

“This rescission motion, though, is purely a rescission motion from three councillors, in accordance with the code of meeting practice, and it puts on the table that … the motion that we’ve resolved in relation to the DA modification [could] be rescinded….

“At this stage, the ombudsman is just undertaking preliminary enquires; we don’t know the nature of the complaint, but the ombudsman’s office actually doesn’t have any power to stop council from making a decision.

“We have been advised [Ombudsman NSW] has no intention of interfering in council’s decision making – so the rescission motion itself is not related to the ombudsman.”

Councillors Richie Williamson and Karen Toms were absent.

Only a handful of NSW landowners to face court over Murray-Darling Basin water theft allegations?

ABC News, 8 March 2018:

The NSW Government will prosecute several people over alleged water theft on the Barwon-Darling, eight months after Four Corners investigated the issue.

WaterNSW has named the people it is taking to the Land and Environment Court over alleged breaches of water management rules.

They are prominent irrigator Peter Harris and his wife Jane Harris, who own a major cotton farm near Brewarrina in the state's north-west and were named in the Four Corners story.

The couple have been accused of taking water when the flow conditions did not permit it, and breaching licence and approval conditions.

Three members of another prominent family are also facing charges: cotton grower Anthony Barlow from Mungindi near Moree and Frederick and Margaret Barlow.

The Barlows have been accused of pumping during an embargo and pumping while metering equipment was not working.

WaterNSW gave false figures: Ombudsman

WaterNSW announced the prosecutions an hour before the NSW Ombudsman released a scathing report saying the agency had given the Government incorrect figures on its enforcement actions.

The state's ombudsman, Michael Barnes, found WaterNSW gave incorrect figures when it provided statistics that showed there had been a significant increase in enforcements between July 2016 and November 2017.

"The information provided to us indicated that the updated statistical information from WaterNSW that we'd published was significantly incorrect," he said.

"There had, in fact, been no referrals for prosecutions and no penalty infringement notices issued in the relevant period."

Mr Barnes said he initiated a separate investigation after his office received complaints about the figures, and he found WaterNSW had inflated the statistics.

"As part of our investigation, we confirmed with Revenue NSW that no penalty infringement notices were issued by WaterNSW in the relevant period," he said.

The ombudsman said he raised the issue with WaterNSW, which has admitted to the mistake and apologised.

Mr Barnes also said he believed the error was unintentional.

The agency's CEO, David Harris, said staff have now manually reviewed all actions taken.

"Some of the detail WaterNSW provided was incorrect and, although it was revised, it is not acceptable and we are acting to ensure it does not happen again," he said……

NSW Ombudsman, Correcting the record: Investigation into water compliance and enforcement 2007-17: A special report to Parliament under sections 26 and 31 of the Ombudsman Act 1974, 8 March 2018, Amended enforcement outcome statistics: